06/20/2025

Tort Immunity and Planning in the Age of E-Bikes and E-Scooters

Electric scooters and electric bicycles are an increasingly popular transportation and recreation option, and their expanded use presents new challenges for municipal planners. A key area of concern for planners looking to encourage a diverse mix of transportation in their communities is how the increased use of e-scooters and e-bikes may impact existing transportation corridors and the potential tort immunity implications when an accident occurs.

In Alave v. City of Chicago, 2023 IL 128602, the Illinois Supreme Court addressed the scope of the legal duty municipalities owe to cyclists using public roadways. This guidance can help inform best practices for planners looking to reduce potential liability for their municipality while also designing multi-modal transportation corridors to address transit and recreation needs in their communities.

In Alave, a cyclist was injured after striking a pothole located in a public street on the north side of Chicago that was not part of a designated bike path but was located near a Divvy bike rental station. The cyclist sued the City of Chicago, alleging the City was liable for his injuries because the City intended for bikes to be ridden on the street and it failed to adequately maintain the roadway for use by cyclists. The cyclist referenced the streetscape and relevant City regulations to support his argument that the City specifically intended the street for bike use. First, he argued that the placement of a  nearby Divvy station evidenced an intent that local streets be used by bicyclists.  Additionally, he referenced a Chicago ordinance generally prohibiting bikes from being ridden on sidewalks to argue that he had no alternative other than riding in the street where the pothole was located. The trial court ruled in favor of the City, finding the cyclist was not an intended user of the roadway. On appeal, the First District Appellate Court ruled in favor of the cyclist, finding the City’s decision to place a Divvy station in the vicinity of the street where the cyclist was riding showed the City intended for bike use where the cyclist was injured. The City appealed the case to the Illinois Supreme Court.

The key statutory authority implicated by the assessment in the Alave case is the Local Governmental and Governmental Employees Tort Immunity Act. Under the Illinois Tort Immunity Act, a municipality only owes a duty of reasonable care to ensure municipal property is reasonably safe for individuals who are both permitted and intended users of the property. See 745 ILCS 10/3-102(a). For a user to be an intended user of municipal property, there must be affirmative  facts showing that the municipality intended for the specific use of a property which resulted in an injury.  This assessment by a court involves a case-by-case assessment of the specific features and characteristics of public property.

After reviewing City ordinances regulating bicycle use, acknowledging the placement of a Divvy station and a bike rack nearby, and noting the lack of signs or a pavement markings designating the street as a bike lane the Supreme Court in Alave determined that the cyclist was not an intended user of the road. Because the cyclist was not an intended user, the City did not have a legal duty to ensure the road was safe for his use and was not liable for his injuries. An important takeaway for planners from the Alave case is that merely placing a bike or scooter rental docking station on a street is unlikely to result in a rider being considered an intended user of the public street. Additional factors showing the municipality intended the property to be used by bicyclists would likely be needed for an individual to prove that a municipality is liable for injuries sustained on public property. The Court’s decision in Alave, along with recent legislative efforts, provides guidance to communities seeking to address the growth in e-bike and e-scooter use—along with related safety concerns.

The Illinois legislature has considered several bills on the issue of e-scooters, e-bikes, and tort immunity. In 2024, language was removed from the final version of Public Act 103-899 (regulating e-scooter use)  that would have only allowed an e-scooter rider to be designated an intended user of a public right-of-way if a municipality passed an ordinance providing so. While this language was removed from the final version of the bill, an ordinance allowing e-scooter use in a municipality will not automatically result in e-scooter users being considered intended and permitted users of all public streets. As demonstrated by Alave, whether e-scooter users are found to be intended users of paths and roadways could have significant implications for municipal liability on a case-by-case basis.

Additionally, House Bill 2454 was introduced in the most recent session of the Illinois General Assembly and would have amended the Tort Immunity Act to make cyclists an intended user of all roadways on which they are permitted (or not prohibited) to ride. While this bill was not passed, if ever reconsidered it would present an increased risk of liability exposure for municipalities.

In light of the Alave decision, what is the best way for practicing planners to design transportation corridors that balance meeting resident needs while also protecting their community from lawsuits? First and foremost, planners who engage in comprehensive planning should leverage the experience of engineers, public works staff, and other professionals to design multi-modal transportation corridors that create clearly defined and safe pathways for emerging recreation and transportation options.

Community and comprehensive planning efforts are important tools that can assist planners in this process. Soliciting feedback from the community on transportation needs can help to identify potential routes for expanding bike lanes and other infrastructure to accommodate increased use of e-scooters and e-bikes depending on their prevalence in a given community. Working with engineering and public works staff can help planners identify safe locations to expand bike lanes or adapt existing bikes lanes to increase safety for users. Importantly, signs or pavement markings designating a street as a bike lane will almost certainly lead a cyclist or e-bike user to be considered a permitted and intended user of a street. Roads that have pavement markings or signs designating it as a bike plan should be regularly inspected and well maintained to ensure they are reasonably safe for use by cyclists. Working to coordinate among stakeholders engaged in planning, building, and maintenance efforts can help reduce the likelihood that any one part of a roadway improvement project falls short of the standard of care imposed by law on municipalities.

As new recreational devices and trends continue to evolve, planners can help their municipality stay ahead of potential injury claims by leveraging the planning process to solicit community and professional feedback regarding the safest, most effective way to plan for bicycles, e-bikes, and e-scooters.

Authors: Erin M. Monforti, Associate Attorney at Ancel Glink and Tyler J. Smith, Associate Attorney at Ancel Glink

Ancel Glink’s representation in land use matters spans Illinois and beyond and involves the full range of residential, commercial, and industrial development and redevelopment.

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